FINAL REPORT Kenya General and Presidential Elections March 7, 2018

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1 EXECUTIVE SUMMARY FINAL REPORT 2017 Kenya General and Presidential Elections March 7, 2018 Kenya s 2017 general electoral process was marred by incidents of unrest and violence throughout the extended electoral period, and by harsh attacks by top political leaders on electoral and judicial authorities that seriously undermined the independence of the country s democratic institutions and the rule of law. The confrontational tactics and actions of Kenya s political leaders polarized the country and exposed the deep tribal and ethnic rifts that have long characterized its politics. Regrettably, the elections represent a major setback in Kenya s democratic development. Overview of Key Findings Pre-election Period. The pre-election period included a reasonably adequate but flawed voter registration process, which included an independent audit and corrective actions to address some of the many errors in the list. While the voter list retained serious problems, the introduction of the KIEMS biometric voter identification system provided a strong safeguard against multiple voting on election day. The level of political competition in the various races was high, and there was a significant increase in the number of independent candidates. Aug. 8 Election. Carter Center observers found that the voting and counting processes during the Aug. 8 election were generally well-administered. However, observers noted problems during the subsequent processes of electronically transmitting polling station results and tabulation of results at county-level tallying centers. While these were designed to allow for thorough checks and verification of election results, and should have been possible to implement, the process of tallying and tabulating final results suffered from delays and a lack of transparency. The situation was made worse by heightened political tensions and confrontational statements by political leaders. By the morning of Aug. 9, the day after the elections, as the Independent Electoral and Boundaries Commission (IEBC) began announcing provisional results showing President Uhuru Kenyatta with a roughly 10 percent lead, opposition presidential candidate Raila Odinga and his National Super Alliance (NASA) claimed that there had been massive fraud and that the results had been hacked. On the afternoon of Aug. 9, the IEBC s nearly complete provisional results showed President Kenyatta with 54 percent of the vote, leading by a margin of some 1.4 million voters over opposition presidential candidate Raila Odinga, with about 45 percent of the vote. Although 1

2 the IEBC noted that the process of tallying and submitting official results forms to the national IEBC center was proceeding at a slow pace, it did not highlight or clarify that the results broadcast on TV were unofficial provisional results received electronically directly from polling stations. Unfortunately, for unexplained reasons, the IEBC did not utilize the full seven-day period provided by the law to consolidate and post all of the official polling-station results forms. Instead, the IEBC hastily declared the final presidential election results on Aug. 11, just three days after election day, based on the constituency-level results forms, and prior to the receipt of all polling-station level results forms. Worse still, election authorities failed to ensure that parties had timely access to official polling-station level results in the days following the announcement of official results, which made it impossible for parties and observers to fully verify and cross-check the results against their internal data and reports in time to include any key evidence in court petitions. While the lack of IEBC polling-station data hindered the parties ability to verify results, it is important to note that a Kenyan citizen election observation organization (Election Observation Group, or ELOG) conducted a parallel vote tabulation (PVT) that provided an independent verification of the official results. ELOG s PVT was based on results data gathered from a representative random sample collected by about 1,700 observers deployed around the country. The PVT s estimated results, which were released on Aug. 11, were consistent with the IEBC s official results. 1 Supreme Court Decision. After initially refusing to take these claims to court and saying his supporters had the right to protest in the streets, Odinga and NASA decided to file a petition challenging the results shortly before the deadline. Several weeks later, in an unexpected ruling announced on Sept. 1, the Supreme Court annulled the results of the presidential election, finding that the tabulation procedures failed to fulfill the constitutional requirement that all elections be simple, secure, transparent and verifiable. It called for the election to be rerun in fresh polls within 60 days. The court s historic decision to overturn a presidential race was highly unusual and was seen by NASA as vindication of its claims of fraud and hacking, even though the court found no evidence to support either claim. Neither did the court find malfeasance on the part of staff of the IEBC. The ruling party and others, however, criticized the ruling for not taking into consideration the fact that there was no evidence demonstrating that the alleged irregularities were of a sufficient magnitude to affect the results. While this guiding principle is commonplace in international election law, Kenya s law at the time of the decision did not require a finding that alleged irregularities affect the results in order to annul the election. 2 Based on the evidence introduced regarding the lack of transparency and verifiability, and the failure of the IEBC during the court hearings to respond to legitimate concerns raised in the petition, the court was well within its bounds to annul the election results. Oct. 26 Election. In the period leading up to the Oct. 26 fresh election, the IEBC took several steps to correct shortcomings identified in the court s ruling, including the introduction of more See Steve Brickerstaff s International Principles of Vote Recounts and Election Contests, in International Election Remedies, John Hardin Young (ed), 2016, American Bar Association, p. 200; and Electoral Justice: The International IDEA Handbook, para. 546, p

3 transparent and verifiable results tallying and transmission processes. While IEBC Chairman Wafula Chebukati indicated the IEBC was prepared to conduct the polls on schedule, he also made clear that the continued refusal of the two leading candidates to meet jointly with the IEBC to discuss an agreed-upon way forward constrained the IEBC s ability to conduct a credible election. In the meantime, Odinga announced his withdrawal from the Oct. 26 election, citing a lack of real electoral reform and level playing field, and called for his supporters to boycott the Oct. 26 polls. With several petitions before the Supreme Court, the court was scheduled on Oct. 25 to review cases that could have resulted in a decision to delay the election, which also would have allowed more time for political leaders and the IEBC to agree on any additional electoral process reforms needed to hold a competitive, inclusive, and credible election as soon as possible. Unfortunately, however, Kenya s political leaders missed a critical opportunity to ensure an inclusive and transparent election. The scheduled Supreme Court hearing did not take place, as only two court justices appeared, three short of the five needed for a quorum. While the circumstances surrounding the missed court hearing are disputed, the environment leading into the Oct. 26 election was marked by increased insecurity, an uncertain political environment, and an opposition boycott that resulted in a largely uncontested election. In light of the NASA boycott, turnout for the fresh presidential election dropped significantly. In addition, voting had to be cancelled in some opposition areas because of fears of violence and related hindrances that prevented poll workers from carrying out their responsibilities. The postponement of elections in 25 constituencies because of security concerns impeded citizens ability to exercise their right to vote and undermined the credibility of the election. Incumbent Uhuru Kenyatta won percent of the Oct. 26 vote. Several civil society organizations challenged the conduct and results of the Oct. 26 election in court on a variety of grounds. 3 The Supreme Court dismissed the petitions on Nov. 20, finding them without merit. President Kenyatta was inaugurated on Tuesday, Nov. 28. Aftermath. Taken as a whole, the 2017 electoral process damaged Kenya s key democratic institutions and its social cohesion, leaving the country deeply divided after an annulled presidential election, followed by a rerun election marred by violence and an opposition boycott. While Kenya was able to avoid the large-scale violence that undermined several past elections, the 2017 elections were characterized by a tense political environment throughout the electoral period, from the party primaries in April to the rerun presidential election in October. The key political leaders repeatedly took steps that harmed the process, taking hardline positions, failing to seek common ground, and using inflammatory and divisive political rhetoric. There were multiple violent protests, more than 100 reported deaths, and many more injuries. Victims included children. In the months since the election, there have been continued political confrontations that threaten key democratic actors, including the courts, civil society, journalists, and others. To change course, 3 Petitioners claimed, inter alia: that the IEBC failed to conduct the election in conformity with the constitution following the withdrawal of one of the two candidates by not calling for fresh candidate nominations; that the election violated the principle of universal suffrage, given that many areas of the country did not vote; and not holding the election in all 290 constituencies simultaneously as required by the constitution. Petitioners also alleged that the IEBC lacked the independence, neutrality, and transparency mandated by the constitution. 3

4 Kenya s political leaders must demonstrate the courage and foresight to prioritize actions that foster genuine dialogue and reconciliation, and take concrete steps to advance Kenyans collective interest in inclusive governance, foregoing narrow and short-term partisan interests. Political stakeholders should take action as quickly as possible to organize national stocktaking exercises and to develop and implement key electoral reforms well in advance of the 2022 election. The process should be guided by principles of inclusion and shared values grounded in the country s constitution. Additional Findings Legal Framework. Kenya has a generally sound and comprehensive electoral and legal framework for the conduct of democratic elections. However, the volatile electoral period exposed gaps and inconsistencies in the electoral framework and reinforced the importance of resolving legal complaints swiftly. Some last-minute changes to the legal framework that allowed the IEBC vice chairman to carry out the chairman s duties in his absence and that reduced the quorum for IEBC meetings from five to three, allowing decisions to be taken by a vote of just two IEBC members, weakened the IEBC s authority and appeared to benefit the ruling party, and were contrary to international best practice. Election Administration. The Independent Electoral and Boundaries Commission, appointed in early 2017, faced challenges in meeting strict constitutional and legislative deadlines for the conduct of the elections. In spite of intense political pressure from opposition and ruling parties throughout the electoral period, the IEBC successfully registered an unprecedented number of new voters, and 80 percent of voters cast ballots in August. The IEBC recruited and prepared staff despite a tight timeline and numerous court challenges affecting its work. It conducted an audit of the voter register and worked to implement some of the resulting recommendations. However, there was a lack of transparency in the IEBC s operations and inconsistent communication with electoral stakeholders and the public. The murder of the head of the IEBC IT department, Chris Msando, still unsolved, in the lead-up to the Aug. 8 election created a climate of uncertainty that lingered throughout the electoral period. The breakdown in the IEBC s results transmission system in the days after the Aug. 8 election critically undermined the transparency of the tallying process and severely hindered verification efforts by parties and independent observers, leading to legitimate questions about the accuracy of the results. The Supreme Court found that the IEBC failed to transmit results electronically from all the polling stations to the National Tallying Center at the same time as the tally forms, in violation of Section 39(1c) of the Elections Act, and that the IEBC had used results forms of questionable authenticity. The court ruling also criticized the IEBC for failing to grant sufficient access to its computer servers during the court hearings on the NASA election petition, which was contrary to Kenya s constitutional requirement of transparency and verifiability of the electoral process. Despite efforts to improve its administration of the polls for the Oct. 26 rerun election, especially of the ICT systems for transmitting and tabulating results, the IEBC suffered from a lack of public confidence. Campaign Period. The political environment was highly polarized and divisive throughout the 2017 electoral period. Instances of violence occurred beginning with the political party primaries and continuing through the post-election period. The campaign for the Aug. 8 general election was highly competitive. Voters had a wide choice of candidates for the majority of seats at all levels of government in the August polls. The political environment became more volatile and worsened 4

5 significantly in the lead up to the Oct. 26 election, which was boycotted by opposition NASA candidate Raila Odinga. Carter Center long-term observers noted a significant drop in campaign activity compared to the August polls. In those regions where campaigning took place, the Jubilee Party held large rallies, conducted car caravans, and purchased billboard ads. Several politicians from both Jubilee and NASA were arrested on hate speech charges, and reports of violence against women and other marginalized groups increased. Political Participation. Women aspirants and candidates faced a hostile political environment, including propaganda, smear campaigns, and violence. Many lacked sufficient finances to run for office. Youth and Persons with Disabilities (PWDs) also faced similar barriers to participation. Positively, nomination fees were reduced to promote participation by these special-interest groups. The IEBC established a youth coordinating committee on elections to provide advice on how the commission could help ensure meaningful youth engagement. Women candidates numbered 1,300 out of a total of 14,523 candidates (9 percent), and only 172 (13 percent) were elected. Three women governors and three women senators were elected for the first time. A youth was elected governor for the first time. Eight PWDs were elected to office. Nonetheless, even in light of these important firsts, political participation for women, youth, and PWDs fell far short of international standards and failed to meet Kenya s constitutional requirements, especially the one-third quota for women. Of particular concern, women and other special-interest groups are especially vulnerable to violence. Electoral Dispute Resolution. Kenyan legislation on dispute resolution is complex, involving multiple resolution bodies with, at times, overlapping jurisdiction and inconsistent deadlines. While courts prioritized election-related cases and resolved most of the disputes in a timely fashion, the lack of a single appeals process, combined with short timelines for resolving preelection disputes, failed to guarantee an effective and timely remedy. This was particularly a problem for challenges regarding the party primaries, candidate nominations, and candidate registration. For future elections, Kenya s parliament should consider extending the deadline for the Supreme Court to resolve challenges to the results of a presidential election from the current 14 days to a minimum of 30 days to allow for a thorough consideration of all issues and sufficient time for verification exercises. These and other amendments should flow from broad political consultation and enjoy wide political support. Role of Civil Society. Civil society organizations and faith-based groups engaged in a robust manner, conducting voter education and peacebuilding efforts prior to the elections. Many groups observed the entire electoral period, covering both the Aug. 8 and Oct. 26 elections, releasing reports on findings and recommendations for reforms. However, CSO engagement was less visible for the Oct. 26 polls. Concerns were raised about constraints on civil society in the post-election period, as the government threatened the registration of two prominent Kenyan human rights organizations. Following an outcry by local CSOs and the international community, the acting interior cabinet secretary halted the de-registration process to allow for further investigations. The Security Situation. Over the course of the extended electoral period, observers voiced concerns on multiple occasions about excessive use of force by security personnel. Several people, including children, died in post-election violence during clashes with security forces. The charged campaign environment, coupled with the violent protests and excessive use of force by security, increased the vulnerability of special-interest groups, especially women and children. Following the Aug. 8 elections, there were reports of human rights violations, including beatings and killings by security forces as well as sexual violence against women and girls. Multiple organizations and agencies 5

6 joined an appeal to the inspector general of police and other government agencies charged with protecting the rights of women and girls, raising concerns about sexual violence perpetrated in the electoral period, reportedly by police officers. The security situation deteriorated further in the period leading up to the Oct. 26 fresh election, as many opposition politicians stated that they would not allow the election to take place in their areas and Odinga began a campaign to encourage his supporters to boycott the election. Election day itself was marred by violent protests in NASA s strongholds in western regions of the country and in Nairobi s volatile slum neighborhoods. The IEBC could not deliver election materials to some of these areas because of blocked roads. Some of the polling staff in the affected areas did not show up for work. As a result, the IEBC postponed the election by two days in the four counties where polls were unable to open. Polling in these locations was later postponed indefinitely after it became clear that the security situation would not improve sufficiently in the days following the election. The Carter Center s Election Observation Mission in Kenya The Carter Center deployed a core team of experts and long-term observers in Kenya in April 2017 to monitor key parts of the electoral process, including voter registration, campaigning, electoral preparations, and the resolution of disputes in the courts. Former U.S. Secretary of State John Kerry and former Senegalese Prime Minister Aminata Touré led a short-term election observation mission for the Aug. 8 elections that included more than 100 observers from 34 countries. Observers traveled throughout the country to assess the balloting, counting, and tallying processes. Following the Sept. 1 decision by the Supreme Court to annul the August election, the Center extended its presence to observe the Oct. 26 presidential rerun. Long-term observers were redeployed to various locations in the country to observe critical pre- and post-election processes. Because of the insecurity surrounding the polls, the uncertain political environment, and the lack of a fully competitive election, The Carter Center did not deploy a short-term observer delegation for the October polls. The team was limited in size and geographic scope and therefore did not conduct a robust assessment at the polling-station level on election day. The Center conducts its observation missions in accordance with the Declaration of Principles for International Election Observation, which was endorsed by the United Nations in The Center s mission for the 2017 Kenya elections assessed the process based on Kenya s legal framework and on international standards for democratic elections. The Center issued multiple public statements at various points during the electoral process, including a pre-election statement on Jul. 27, a preliminary statement about the Aug. 8 election on Aug. 10, a statement regarding the tabulation process on Aug. 17, and two statements on the Supreme Court ruling and its implementation on Sept. 1 and Oct. 4. A pre-election statement was issued on Oct. 24 and a preliminary statement on the Oct. 26 election on Nov. 6. These public statements are available at This report presents the Carter Center s comprehensive findings and conclusions for Kenya s 2017 electoral period and offers recommendations to help strengthen Kenya s future electoral processes. 6

7 Main Report: Findings and Conclusions Political Background The dynamics of the 2017 general elections were heavily influenced by the political and electoral events of the last decade. The elections were the third since 2007, taking place a decade after Mwai Kibaki was re-elected in December 2007 amid charges of vote-rigging from Orange Democratic Movement (ODM) candidate Raila Odinga. Post-election violence erupted, in which an estimated 1,500 people died. Former U.N. Secretary-General Kofi Annan led an African Union-sponsored mediation effort and brokered a power-sharing accord in February The accord brought Odinga into government in the position of prime minister and included a broad reform agenda, the centerpiece of which was constitutional reform. In August 2010, Kenyans overwhelmingly adopted a new constitution in a national referendum. The new constitution introduced additional checks and balances to executive power as well as significant devolution of power and resources to 47 newly created counties, and created the position of deputy president. It also eliminated the position of prime minister following the first presidential election under the new constitution, which was held in March The 2013 general elections were the first administered by the new Independent Electoral and Boundaries Commission (IEBC) created under the 2010 Constitution. The presidential elections were effectively a contest between Uhuru Kenyatta of the National Alliance (TNA) and Raila Odinga of the Orange Democratic Movement (ODM). Kenyatta was backed by the Jubilee Alliance (which later formed the Jubilee Party), while Odinga was supported by the Coalition for Reforms and Democracy (CORD). Kenyatta defeated Odinga in a very tight race, crossing the constitutional threshold of 50-percent-plus-one required to avoid a runoff by a mere 63,115 (if counting only valid votes cast). Odinga alleged fraud and challenged the election results in court. 4 The Supreme Court upheld Kenyatta s victory. Concerns noted during the 2013 election included questions about the accuracy of the voter register, the failure of technology during results transmission, and various delays in implementation of the electoral calendar, among other issues. Electoral stakeholders looked closely at these aspects of electoral administration in preparing for the 2017 elections. As in 2013, the 2017 election was a hotly contested race between President Kenyatta (with deputy president William Ruto as his running mate) and Raila Odinga (with Kalonzo Musyoka as his running mate). The opposition National Super Alliance (NASA) led by Odinga included the Orange Democratic Movement (ODM), the Wiper Democratic Movement, the Amani National Congress (ANC), and Ford-Kenya. President Kenyatta aimed to secure a second term, and Odinga sought to claim the presidency, which he and his supporters believed had been stolen from him in the previous two elections. 4 The margin would have been only 8,632 votes if spoiled ballots were included in the count of total votes. The Supreme Court ruling that upheld Kenyatta s victory determined that vote shares were to be based on valid votes cast, not including spoiled ballots. 7

8 The current IEBC commissioners began serving in January 2017, following the resignation of the previous commission due to pressure from the opposition, which claimed that the commission was operating in a partisan manner and had not administered the 2013 elections in a fair and equitable manner. The new IEBC faced several challenges, including a compressed electoral calendar and questions regarding transparency and capacity, amid numerous legal cases that impacted its work. Electoral System and Legal Framework The establishment of a clearly defined electoral system based in law is an essential component for holding genuine democratic elections and is necessary for the effective administration of democratic elections that adhere to national and international standards. 5 Kenya s Legal Framework for Elections. Kenya has ratified major international instruments that cover electoral rights and uphold compliance with these treaties through its constitution. 6 Elections are primarily regulated by the 2010 Constitution; the 2011 Election Act, last amended in 2017; the Independent Electoral and Boundaries Commission Act of 2011; the 2011 Political Parties Act; the Public Order Act, last amended in 2014; and other acts. 7 Kenya has a generally sound and comprehensive electoral and legal framework for the conduct of democratic elections. However, the volatile electoral period exposed gaps and inconsistencies in the electoral framework and reinforced the importance of resolving legal complaints swiftly. Some late changes to the legal framework, introduced at the last minute contrary to international best practice, weakened the IEBC s authority and appeared to benefit the ruling party (e.g., allowing the IEBC vice chairman to carry out the chairman s duties in his absence and reducing the quorum for IEBC meetings from five to three, allowing decisions to be taken by a vote of just two IEBC members). These actions and the negative reaction to them underscored the need for transparency and public consultation on reforms to support a genuine and trusted process. Looking forward, steps should be taken to eliminate the overlapping jurisdictions of the IEBC and the Political Parties Dispute Tribunal (PPDT); to reduce deadlines for the resolution of electoral disputes, including candidate nominations; to introduce regulations or procedures for resolving election-day disputes; to apply consistent timelines for voter registration that will also allow for a timely verification and audit of the voter register; and to clarify nomination criteria and some election-day procedures. 5 U.N., Universal Declaration of Human Rights, Article 21(3). See also UNHRC, General Comment 25, para. 21: Although the Covenant does not impose any particular electoral system, any system operating in a State party must be compatible with the rights protected by Art. 25 and must guarantee and give effect to the free expression of the will of the voters. The UNHCR Comment 19 indicates that... elections must be conducted fairly and freely on a periodic basis within a framework of laws guaranteeing the effective exercise of voting rights. 6 Article 2 (6) of the Constitution of Kenya states that "any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution." Kenya has ratified major international instruments that cover electoral rights, including the International Covenant on Civil and Political Rights (ICCPR), the African Charter on Human and People s Rights (ACHPR), the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the African Union Charter on the Principles Governing Democratic Elections in Africa (AU CPGDEA), the Protocol to the African Charter on Human and Peoples Rights on the Rights of Women in Africa (ACHPR-PW), and the Convention on the Rights of Persons with Disabilities. 7 The new 2016 Election Offences Act replaced Part VI of the Elections Act

9 2017 Election System. Kenyan voters cast six ballots on Aug. 8: for president, National Assembly, senators, governors, member of county assembly (MCA), and national assembly women representatives. The 2010 Constitution made significant changes in the shape of the government and created a new administrative structure for the country. The constitution devolved power to county assemblies and governors. All elections apart from the presidential are held under the firstpast-the-post system. 8 Citizens vote directly for the president in one nationwide constituency for a five-year term. The winning candidate must receive 50 percent plus one of the votes cast nationally and at least 25 percent of the votes cast in 24 of the 47 counties in order to be declared the winner. 9 If no candidate achieves this majority in the first round, the constitution states that a runoff must be held within 30 days after the previous election between the two leading candidates. In case of nullification of the presidential election, a fresh election is held within 60 days from the date that the court nullifies the results. Recent legislative changes addressed several key issues, including restricting the practice whereby a candidate who loses a party primary switches parties in order to secure a nomination, known as party hopping ; introducing an independent audit of the voter register; and extending deadlines for consideration of complaints by the IEBC to 10 days, among others. 10 Notwithstanding these improvements, several aspects of the legal framework on elections remained vague, including nomination rules, particularly those regarding candidate eligibility and signature requirements. In addition, the regulations for resolving election-day disputes were lacking, and the timelines for conducting voter registration and the subsequent verification and audit of the voter register were inadequate, resulting in a shortened voter registration period and potential disenfranchisement of voters. Critically, the absence of campaign-finance legislation undermined transparency in campaign spending and likely gave significant advantage to the wealthiest candidates and parties. Moreover, the parliament failed to fulfill its constitutional obligation to enact a rule that says no more than two-thirds of any elected body can be of the same gender, despite several court decisions compelling it to do so. 11 This failure undermines the constitution and the right of women to participate in formulation of government policy, as required under Kenya s ratification of the Convention on the Elimination of all Forms of Discrimination against Women. Prior to both the Aug. 8 and Oct. 26 elections, some polling-day procedures, including criteria for determining the validity of ballots, were still unclear, and IEBC officials provided inconsistent information to poll workers during the trainings. 12 The IEBC and the courts made key decisions about the electoral framework very late in the electoral calendar prior to both the Aug. 8 and Oct. 8 Article 138 of the constitution. 9 Following the petition challenging the 2013 presidential election results filed by Odinga, the Supreme Court held that rejected votes should not be included in the count and that the law needed to be further clarified. However, no amendments were passed in this regard. Article 138 of the 2010 Constitution of Kenya. 10 Additional amendments decreased the number of voters per polling station from 1,000 to 700 and provided for registration of prisoners. Moreover, amendments to Section 22 of the Elections Act raised the academic requirements for parliamentarians to a university degree but suspended the application of the new requirements until after the 2017 general election. This amendment was passed despite a High Court decision that declared degree requirements for MPs unconstitutional. 11 The constitution stipulates that not more than two-thirds of the members of any appointive or elective body should be of the same gender. Kenya constitution, Article 81(b). 12 The IEBC issued conflicting clarifications on the validity of correctly marked but unstamped ballot papers. On Aug. 3, through an internal memo, the IEBC directed returning officers, constituency returning officers, and deputy returning officers to consider unstamped ballots as valid. Two days later, it reversed its opinion. 9

10 26 elections, which affected the uniform application of procedures and contributed to legal uncertainty prior to the poll date. On several occasions prior to the Aug. 8 election, the courts declared some of the provisions of IEBC regulations unconstitutional, including the verification and modification of presidential results by the IEBC, the requirement that support signatures for independent candidates be submitted by non-party members, and the obligation of public officers contesting the elections to resign from their government jobs at least six months before an election. 13 Although no formal changes were made to the regulations, the IEBC adapted its procedures to align with these legal rulings. Article 138 of the constitution refers to the procedure of a runoff as fresh elections, contributing to legal uncertainty. The question of exactly what is entailed in a fresh election and whether or not there should be a new candidate-nomination process became critical after nullification of the Aug. 8 presidential election. Unfortunately, neither the constitution nor the Elections Act provides sufficient clarity about these and other key questions and procedures related to "fresh elections." In response to a petition, the High Court ruled on Oct. 11 that the 60-day period within which the fresh election must be held was not adequate to conduct new nominations, and therefore the candidates who participated in the invalidated Aug. 8 election were qualified to contest the Oct. 26 fresh presidential election. The Supreme Court confirmed that the law lacks clarity in this regard and ruled that because the fresh election was a continuation of the previous electoral process, only those candidates validly nominated for the nullified election were able to stand. Late Changes to Legal Framework. Last-minute changes to an electoral law in the lead-up to an election are contrary to good electoral practice, especially in the absence of political consensus. Amendments were made to the electoral law in January 2017, only eight months before the Aug. 8 election. In addition, amendments to the regulations were submitted to parliament in early March, just five months ahead of elections, and were quickly passed, which did not leave time for effective and inclusive public consultation, contrary to international good practice. Moreover, on Sept. 27, only one month before the fresh elections, the ruling party introduced further amendments to the Elections Act, stating that they were necessary to address some of the problems cited by the Supreme Court in its ruling that annulled the results of the Aug. 8 presidential election. However, the Supreme Court s ruling had found that it was the implementation of the law that was at fault and not the law itself. Indeed, IEBC Chairman Wafula Chebukati stated that changing the law at such a late stage would impose substantial challenges for the organization of the fresh election. Unfortunately, once again, the ruling party passed the amendments in an expedited manner in parliamentary sessions boycotted by the opposition, with no time for effective and inclusive public consultation. 14 The amendments further complicated the IEBC s efforts to 13 The ruling of the High Court on April 7, 2017, nullified Section 39(2) and (3) of the Elections Act and Regulations 83(2) and 87(2)(c) of Elections (General) Regulations Section 29 and 43(5) of the Elections Act were declared unconstitutional. The Employment & Labour Relations Court ruled that civil servants do not have to resign their positions to stand as candidates in an election Protocol on Democracy and Good Governance, The Economic Community of West African States (ECOWAS): No substantial modification shall be made to the electoral laws in the last six months before the elections, except with the consent of a majority of political actors. The Code of Good Practice in Electoral Matters of the Venice Commission states that the fundamental elements of electoral law, in particular the electoral system, membership of electoral commissions and the drawing of constituency boundaries, should not be open to amendments less than one year before an election. Point II.2.b. 10

11 achieve consensus between the two leading presidential candidates on the procedural changes necessary to comply with the ruling of the court. 15 The amendments were sent to the president for signature on Oct. 13. Although the president refrained from signing the law, reportedly because of the lack of national consensus and the perception that the changes would give his party an unfair advantage, the amendments nonetheless became law on Nov. 2, after being published in the official gazette. 16 Some of the amendments diminish the independence of the IEBC by introducing procedures that reduce the IEBC s accountability and inclusive decision-making. For example, the amendments provide for the possibility of the vice chairman carrying out the chairman s duties in his absence and reduce the quorum for IEBC meetings from five members to three, making it possible for two members to make decisions. Another amendment makes it more difficult to overturn an election in court by raising the evidentiary bar for challenging election results and mandating that the Supreme Court find that alleged irregularities in an election affect the results before annulling an election on procedural grounds. While this amendment would make Kenya s law more consistent with broad international practice and could provide greater assurances that the will of the voters will be respected, the manner in which it was passed shortly before the presidential rerun and without political consensus reinforced the divisive nature of the polls. 17 Three petitions challenging the legality of the bill were filed with the High Court, requesting their suspension pending determination of the court. 18 Summary. While Kenya s electoral and legal framework is generally strong and provides for the conduct of democratic elections, the compressed timeline for implementation of the polls and the contentious political environment exposed several gaps and inconsistencies in the electoral framework that should be reformed through a genuinely transparent process that includes broad public consultation conducted well in advance of the 2022 electoral cycle. These steps could help increase public confidence in the IEBC. Moving forward, electoral reform is needed to effect some key changes. Reforms should clarify the jurisdiction of the IEBC and the Political Parties Dispute Tribunal (PPDT); shorten deadlines for the resolution of some electoral disputes, including candidate nominations; introduce regulations or procedures for resolving election-day disputes; apply adequate timelines for voter registration and related audits and verification exercises; and clarify nomination rules and some election-day procedures. 15 An elections law amendment bill was tabled in parliament on Sept. 27. The bill was discussed on Sept. 28. Opposition MPs forced Deputy Speaker Moses Cheboi to call for physical voting after they lost the first round of voting by acclamation. 16 The bill was published in the Official Gazette and entered into force on Nov On the principle requiring that alleged irregularities should be demonstrated as having affected the outcome before results can be annulled, see Steve Brickerstaff, International Principles of Vote Recounts and Election Contests, in International Election Remedies, John Hardin Young (ed), 2016, American Bar Association, p. 200; and Electoral Justice: The International IDEA Handbook, para 546, p On Dec. 5, 2017, the High Court suspended the bill and scheduled a hearing for March 16,

12 Election Administration An independent and impartial election management body that functions transparently and professionally is internationally recognized as an effective means of ensuring that citizens are able to participate in the electoral process and that international human rights obligations pertinent to the electoral process are upheld. 19 Best practice indicates that an election management body should ensure accountable, efficient, and effective public administration as it relates to elections. 20 Election Administration Structures. Elections in Kenya are administered by a four-tiered election administration, comprised of the IEBC in Nairobi, 290 constituency election offices, 47 county offices, and 40,883 polling stations. 21 The IEBC is the principal institution responsible for oversight of the electoral process, with a broad constitutional mandate. The current commissioners were appointed in late January 2017, eight months before the general election, following opposition demonstrations and street protests calling for the removal of the previous commissioners. While there was a complete turnover of commissioners, Chief Electoral Officer Ezra Chiloba has been in place since In addition, several technical staff who administered the elections in 2013 remained in their positions for the 2017 elections. Transparency in Election Information. Although the newly appointed IEBC commissioners started with a clean slate, they were burdened with the distrust that affected their predecessors and a compressed timeline in which to organize the elections. The IEBC provided intermittent public updates on election planning during the electoral period. Prior to the Aug. 8 election, the IEBC held a national election conference over several days to report on election planning. Notwithstanding these commendable efforts, the IEBC continuously failed to meet its constitutional obligation of transparency during the extended electoral period. It did not inform the public of its decision-making processes and consistently failed to publish the minutes of its meetings and its internal voting records. 22 Despite urging by diverse stakeholders, including The Carter Center, the IEBC failed to communicate clearly and regularly about the status 19 ICCPR, General Comment 25, para. 20 requires that [a]n independent electoral authority should be established to supervise the electoral process and to ensure that it is conducted fairly, impartially and in accordance with established laws which are compatible with the Covenant. 20 AU, ACDEG, art. 32(1); Venice Commission, Code, Sec. II.3.1.c. 21 Forty-seven county IEBC offices replaced 17 regional offices, resulting in an increased coverage of the country. The IEBC permanent field staff were rotated to enhance trust in their impartiality and accountability. 22 The IEBC Act, Second Schedule, para. 10 requires that the IEBC keep minutes of all meetings. Para. 19 of the 2011 UNHRC General Comment No. 34 to Article 19 of the ICCPR states, To give effect to the right of access to information, States parties should proactively put in the public domain Government information of public interest. States parties should make every effort to ensure easy, prompt, effective, and practical access to such information. U.N., UNCAC, art. 13(1)(a); AU, Convention on Corruption, Article 12(2); CoE (Venice Commission), Code of Good Practice, sec. II In its July 27 pre-election statement, the Center found that in the face of many challenges, the IEBC moved forward with preparations for the Aug. 8 election. However, it called on the IEBC to take steps to improve communication and transparency. Despite a chaotic party primary process, political competition was high, including a significant increase in the number of independent candidates. The level of electionrelated violence, including harassment and intimidation of candidates and supporters, and reports of violation of the Code of Conduct were of concern. The Center urged sufficient testing of KIEMS as a means to increase public confidence in the electoral process. Despite the strong provisions in the constitution to increase the participation of women, youth, and persons with disabilities, these groups faced serious obstacles to participation.

13 of preparations, challenges, and plans for addressing issues proactively. This lack of transparency negatively affected the confidence and trust of the electorate, civil society actors, and political parties in the work of the IEBC. 23 Although Carter Center long-term observers (LTOs) enjoyed full access to IEBC personnel at the local level, access by core staff at the national level was erratic. IEBC officials provided limited and conflicting information, suggesting that it lacked a uniform understanding of the law and procedures. While reiterating its open-door policy throughout the process, the IEBC either failed or refused to provide copies of their decisions to the Center on numerous occasions. 24 Electoral Preparations. The IEBC worked diligently to prepare for the Aug. 8 and the Oct. 26 elections despite a limited timeframe to prepare for both and significant legal and other challenges faced throughout the electoral period. Procurement of critical election materials, including ballot papers, was also hampered by the late appointment of the commissioners and legal challenges to the procurement process. Despite a compressed timeframe, IEBC recruited and prepared polling staff to implement the electoral process on election day. The IEBC established 40,883 polling stations, each capped to serve no more than 700 voters. This represented a 25 percent increase from 32,613 polling stations in the 2013 polls. Carter Center LTOs followed the recruitment of polling officials in several constituencies across Kenya prior to the Aug. 8 poll and evaluated the overall process as positive. Polling officials blacklisted in 2013 for their performance were not eligible to apply. 25 Poll workers who did not perform their duties satisfactorily for the Aug. 8 election were not rehired for the Oct. 26 election. The IEBC conducted training for its staff in line with the electoral calendar prior to Aug. 8, and the process was largely positive. Carter Center observers assessed the training as well-organized, comprehensive, and interactive. While all workshops followed the same agenda, in some instances trainers relayed inconsistent information about the marking of ballots, the participation of agents, and the validity of ballots, among other issues. Non-sensitive election materials were largely distributed on time, albeit sometimes unevenly, and IEBC personnel were reportedly reactive and swift in addressing these problems. The weakest aspect of the training for the Aug. 8 election related to the tabulation and results transmission process, which manifested itself as a major problem on election day. Although voting-day processes were generally well-administered, concerns surfaced during the tabulation and transmissions processes. KIEMS Integrated Electronic Software. The 2016 legislative amendments in the Elections Act required the establishment of an integrated electronic system covering all aspects of biometric voter identification and registration, candidate registration, and transmission of results. It also required the IEBC to test the new system called the Kenya Integrated Election Management System or KIEMS at least 60 days before the elections. However, the procurement of the KIEMS 23 Article 81 of the constitution sets out transparency as one of the main principles of free and fair elections. Para. 19 of the 2011 UNHRC General Comment No. 34 to Article 19 of the ICCPR calls on states parties to proactively provide access to information on issues of national importance. 24 These included all the decisions following resolutions of disputes, as well as the decision on suspension of the campaign taken by the Siaya County returning officer as reportedly directed by the management. 25 After the timeframe for hiring had passed, Carter Center observers noted that the selection process had not been finalized in some areas (Nairobi, Narok, Kilifi), and the recruitment had to be reopened because of a lack of sufficient qualified candidates. One reason given for this deficiency was that the application was online, which prevented some potential candidates from applying. 13

14 and ballot papers was delayed by legal challenges. The initial kits arrived on April 14, and delivery was completed in early June. The staggered and late delivery of KIEMS negatively impacted the voter verification process. The IEBC conducted a limited test by the legal deadline and held a countrywide simulation on Aug. 2, less than a week before the Aug. 8 general elections. Though all counties took part in the simulation, the IEBC opted to display results from only a limited number of counties. This reversal of their stated plans detracted from the transparency of the process and decreased public trust in the operation of the system. More intensive testing and posting of results might have revealed the deficiencies that contributed to the failure of the results transmission during the Aug. 8 election. No nationwide KIEMS simulation was conducted prior to the Oct. 26 fresh election. Preparations for the Oct. 26 Election. While the IEBC took preliminary steps to address the weaknesses cited by the Supreme Court in its Sept. 1 ruling, the court did not release its detailed judgment until Sept. 20, leaving less than a month to enact reforms and exerting great pressure on the commission. The period before the Oct. 26 election was marked by a continued lack of transparency, limited communication, and a more pronounced dysfunctional internal operation of IEBC, which further reduced an already fragile public confidence and trust in its work. The internal disorganization and disagreements within the IEBC spilled out into the public when, on Oct. 18, IEBC Commissioner Roselyn Akombe resigned and left the country, alleging that the IEBC had become a party to the electoral and political crisis and that commissioners were voting along partisan lines. Akombe maintained that in the current political environment, the elections as planned cannot meet the basic expectations of a credible election. This assessment was supported by Chairman Chebukati, on Oct. 18, when he said that although the commission was technically ready to administer the polls, political agreement and critical changes in key secretariat staff were needed for him to commit to serving as the national returning officer and to hold a free, fair, and credible election. In addition to the internal divisions, the IEBC faced a volatile and polarized political environment throughout the electoral period. This intensified prior to the Oct. 26 election as the main political actors became more entrenched in their positions. The Jubilee Party stated that it had no requests for any procedural reforms, and party officials, including the president, pushed for the Oct. 26 election to take place as scheduled, despite numerous legal challenges. Meanwhile, NASA presented a set of demands known as its irreducible minimums to be met before it would participate in the election. These included the replacement and prosecution of IEBC staff they saw as responsible for the problems that led to the nullification of the Aug. 8 election and securing new companies to print the ballot and results forms, and to design and oversee the electronic results transmission platform. Some of the demands could not realistically be met during the timeframe allotted. Others would have impinged upon the IEBC s independence. For example, the IEBC refused to replace OT Morpho/Safran, the IT company that supplied the software for the electronic results transmission system, despite NASA demands to do so, given the tight timeframe involved. However, in response to the opposition s request to fire IEBC personnel, the IEBC chairman did exclude some key personnel from the project team set up to oversee the election. One week prior to the election, CEO Ezra Chiloba, one of the key staff whom NASA blamed for the initial election s irregularities, announced his departure on a three-week leave. 14